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STATE OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. JUPITER
ALUMINUM CORPORATION, Respondent. |
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AGREED ORDER
Complainant and Respondent desire to settle and compromise
this action without hearing or adjudication of any issue of fact or law, and
consent to the entry of the following Findings of Fact and Order. Pursuant to IC 13-30-3-3, entry into the terms
of this Agreed Order does not constitute an admission of any violation
contained herein. Respondent's entry
into this Agreed Order shall not constitute a waiver of any defense, legal or
equitable, which Respondent may have in any future administrative or judicial
proceeding, except a proceeding to enforce this order.
I. FINDINGS OF FACT
1. Complainant is the Commissioner
(Complainant) of the Indiana Department of Environmental Management (IDEM), a
department of the State of Indiana created by Indiana Code (IC) 13-13-1-1.
2. Respondent is Jupiter Aluminum
Corporation, Jupiter Coil Coating Division (Respondent), which owns and operates
an aluminum coil coating facility located at 205 East Carey Street, Fairland,
Shelby County, Indiana (the Site).
3. Respondent is authorized by National
Pollutant Discharge Elimination System (NPDES) Permit Number IN 0061735 to
discharge wastewater treated in accordance with the terms and conditions of the
NPDES Permit from its industrial wastewater treatment plant (WWTP) into waters identified
as an on-site drainage pit via Outfall 001.
Respondent was issued its prior NPDES permit with an effective date of
November 1, 2003 (Prior Permit), and was issued its current NPDES permit with
an effective date of April 1, 2009 (Current Permit).
4. IDEM has
jurisdiction over the parties and the subject matter of this action.
5. Pursuant to IC 13-30-3-3, IDEM issued a
Notice of Violation (NOV) on July 16, 2010, via Certified Mail to:
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Jupiter
Aluminum Corporation |
Jupiter
Aluminum Corporation |
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Jupiter
Coil Coating Division |
Jupiter
Coil Coating Division |
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Dietrich
M. Gross, President |
Corporation
Service Company, Registered Agent |
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1745
165th Street |
251
E. Ohio Street, Suite 500 |
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Hammond,
IN 46320-2800 |
Indianapolis,
IN 46204 |
6. Pursuant to 327 IAC 5-2-8(1) and Part
II.A.1 of both the Prior Permit and the Current Permit, Respondent is required
to comply with all terms and conditions of its NPDES Permit. Any permit
noncompliance constitutes a violation of the Clean Water Act (CWA) and IC 13
and is grounds for enforcement action.
Pursuant to Part I.A.1 of both the
Prior Permit and the Current Permit, Respondent is required to take the
required samples in compliance with the monitoring requirements at a point
representative of the discharge but prior to entry into the drainage pit. Prior to April 1, 2009, the Prior Permit
required Respondent to monitor two times per month (2 X Monthly) for Flow, pH,
Oil and Grease, Chlorides, Iron, and Sulfate.
Beginning April 1, 2009, the Current Permit requires Respondent to
monitor one time per month (1 X Monthly) for Flow, Oil and Grease, Chlorides,
and pH.
Pursuant to Part I.C.2 of both the
Prior Permit and the Current Permit, Respondent is required to submit
monitoring reports to IDEM containing results obtained during the previous
month postmarked no later than the 28th day of the month following each
completed monitoring period.
A record review conducted in May 2010 of
monthly reports for monitoring periods from January 2008 through April 2010,
indicated that monthly monitoring reports were submitted for the monitoring
periods of January through November 2008, however no monthly monitoring reports
were submitted for the monitoring periods of December 2008 through April
2010. Respondent's failure to submit
monthly monitoring reports for the monitoring periods of December 2008 through
April 2010 was in violation of Part I.C.2 of both the
Prior Permit and the Current Permit, 327 IAC 5-2-8(1) and Part II.A.1 of both
the Prior Permit and the Current Permit.
The record review also indicated that
the monthly monitoring reports for the monitoring periods from January 2008 through
June 2008 were all submitted on August 29, 2008, and were not submitted
postmarked no later than the 28th day of the month following each completed
monitoring period. Respondent's failure
to submit monitoring reports to IDEM containing results obtained during the
previous month postmarked no later than the 28th day of the month following
each completed monitoring period for the monthly monitoring periods from
January 2008 through June 2008 was in violation of Part I.C.2 of the Prior
Permit, 327 IAC 5-2-8(1) and Part II.A.1 of the Prior Permit.
On April 20, 2010, Respondent submitted
a letter to IDEM in response to an April 2, 2010 Violation Letter/Report
Non-submittal letter that IDEM sent to Respondent. Respondent's submittal indicated that
Respondent has not complied with the monitoring requirements for its discharge
for the period of December 2008 through December 2009. However, Respondent indicated that beginning
with January 2010, sample collection of the discharge from the treatment system
as required by the Permit has been completed.
Respondent also indicated that sampling was completed in January,
February, March, and July of 2009, and Respondent included sample analyses
which indicate samples were taken on January 22, January 30, February 11, March
16, and July 14, 2009. As of July, 2010,
IDEM had not received any sample results for any monitoring that Respondent
indicated was conducted from January 2010 through April 2010.
Respondent's failure to take the
required samples two times per month during the monitoring periods of December
2008, and February and March 2009 was in violation of Part I.A.1 of the Prior
Permit, 327 IAC 5-2-8(1) and Part II.A.1 of the Prior Permit.
Respondent's failure to take the
required samples one time per month during the monitoring periods of April 2009
through December 2010 (with the exception of July where a sample was reported
for July 14, 2009) was in violation of Part I.A.1 of the Current Permit, 327
IAC 5-2-8(1) and Part II.A.1 of the Current Permit. (As noted above, Respondent had indicated
that samples were taken at the Site from January through April 2010, however as
of July, 2010, IDEM had not received these sample results or summaries of these
sample results and no monthly reports had been received by IDEM for January
through April 2010.)
On August 6, 2010, IDEM received
completed monitoring reports from Respondent for the months of January 2009
through May 2010. Respondent indicated
that the monitoring reports were completed where data was available. Analytical data was only available for four
months in 2009 for inclusion in the DMR reports, but flow data was included for
all twelve months in the 2009 DMR reports.
DMRs and MMRs were completed for the five months in 2010 for which
analytical and flow data was available.
A record review indicates that
Respondent timely submitted monthly reports for July, August, September, and
October, 2010, and the monthly reports indicate that Respondent's discharge was
sampled with the frequency required by the Current Permit, and that no exceedances of the Permit effluent limitations were
reported.
7. Pursuant to IC 13-18-11-11, 327 IAC
5-22, and Part II.13 of the Current Permit, Respondent is required to have its
wastewater treatment facilities under the supervision of an operator certified
by the Commissioner.
Pursuant to 327 IAC 5-22-10, Respondent
is required to place its WWTP under the direct supervision of one certified
operator to be in responsible charge who holds a current certification of a
classification eligible for operation at the classification of WWTP, and for
notifying the commissioner of the name of the person designated to be the
certified operator in responsible charge.
Prior to November 30, 2010,
the treatment facility classification in the Current Permit indicated that
Respondent's WWTP was a Class A-SO industrial wastewater treatment plant,
classified in accordance with 327 IAC 5-22, Classification of Wastewater
Treatment Plants.
Pursuant to 327 IAC 5-22-8, in order to
be certified to operate a Class A-SO wastewater treatment plant, a wastewater
treatment certified operator is required to have at least a Class A-SO
certification.
Beginning on the Effective Date of
Respondent's Current Permit (April 1, 2009), Respondent failed to have its WWTP
under the supervision of a Class A-SO certified operator, in violation of IC
13-18-11-11, 327 IAC 5-22, Part II.13 of the Current Permit, 327 IAC 5-22-10,
327 IAC 5-2-8(1) and Part II.A.1 of the Current Permit.
On August 11, 2010, Respondent submitted
a permit modification request to remove Respondent's WWTP's designation as a
Class A-SO WWTP based on the Current Permit's misclassification of the facility
as a Class A-SO WWTP when the current Permit was renewed on February 18,
2009. On November 30, 2010, IDEM allowed
Respondent's permit modification request and therefore after November 30, 2010,
Respondent's NPDES Permit no longer requires Respondent to have its treatment
facility under the supervision of a Class A-SO certified operator.
8. In recognition of the settlement
reached, Respondent waives any right to administrative and judicial review of
this Agreed Order.
II.
ORDER
1. This Agreed Order shall be effective
(Effective Date) when it is approved by Complainant or Complainant’s delegate, and
has been received by Respondent. This
Agreed Order shall have no force or effect until the Effective Date.
2. Respondent shall comply with the statutes,
rules, and permit conditions listed in the findings above at issue.
3. Respondent shall continue to ensure
that the required samples are taken in compliance with the monitoring
requirements at a point representative of the discharge prior to entry into the
drainage pit. Respondent shall monitor and
report its daily 24 hour total flow, its daily maximum flow, and its monthly
average flow, and at least one time per month Respondent shall monitor and
report its monthly average concentration for Oil and Grease, and its monthly
average and daily maximum concentrations for Chlorides and pH.
4. Beginning on the Effective Date and for
the next 6 months, Respondent shall ensure that Monthly Monitoring Reports and
Discharge Monitoring Reports are submitted to IDEM containing results obtained
during the previous month postmarked no later than the 28th day of the month
following each completed monitoring period each month. If Respondent fails to submit any Monthly
Monitoring Report or Discharge Monitoring Reports to IDEM containing results
obtained during the previous month postmarked no later than the 28th day of the
month following each completed monitoring period each month, Respondent shall
be subject to assessment of stipulated penalties and an additional
enforcement action.
5. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by IDEM, shall be
sent to:
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Terry Ressler, Enforcement Case
Manager |
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Indiana Department of Environmental
Management |
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Office of Water Quality – Mail Code 60-02W |
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100 North Senate Avenue, Room 1255 |
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Indianapolis, IN 46204-2251 |
6. Respondent is assessed a civil penalty
of Twelve Thousand Five Hundred Dollars ($12,500). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within 30 days of the Effective
Date. In the event that the civil
penalty is not paid within 30 days of the Effective Date, Respondent shall pay
interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until
the civil penalty is paid in full.
7. In the event the terms and conditions
of the following paragraphs are violated, Complainant may assess and Respondent
shall pay a stipulated penalty in the following amount:
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Paragraph |
Violation |
Stipulated Penalty |
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3 |
Failure
to monitor the flow as required or failure to take any required sample. |
$500
per violation |
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4 |
Failure
to submit any Monthly Monitoring Reports and Discharge Monitoring Reports
postmarked no later than the 28th day of the month following each completed
monitoring period each month. |
$1,000
per violation |
8. Stipulated penalties shall be due and
payable within 30 days after Respondent receives written notice that
Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated
penalties shall not preclude Complainant from seeking any additional relief
against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, Complainant may seek any other remedies or sanctions available
by virtue of Respondent’s violation of this Agreed Order or Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
9. Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this
action and shall be mailed to:
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Indiana Department of Environmental
Management |
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Cashier – Mail Code 50-10C |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
10. This Agreed Order shall apply to and be
binding upon Respondent its successors and assigns. Respondent’s signatories to this Agreed Order
certify that they are fully authorized to execute this Agreed Order and legally
bind the party they represent. No change
in ownership, corporate, or partnership status of Respondent shall in any way
alter its status or responsibilities under this Agreed Order.
11. In the event that any terms of this
Agreed Order are found to be invalid, the remaining terms shall remain in full
force and effect and shall be construed and enforced as if this Agreed Order
did not contain the invalid terms.
12. Respondent shall provide a copy of this
Agreed Order, if in force, to any subsequent owners or successors before
ownership rights are transferred. Respondent shall ensure that all contractors,
firms and other persons performing work under this Agreed Order comply with the
terms of this Agreed Order.
13. This Agreed Order is not and shall not be
interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or
approval of any submittal made by Respondent pursuant to this Agreed Order,
shall not in any way relieve Respondent of its obligation to comply with the
requirements of its applicable permits or any applicable Federal or State law
or regulation.
14. Complainant does not, by its approval of
this Agreed Order, warrant or aver in any manner that Respondent’s compliance
with any aspect of this Agreed Order will result in compliance with the
provisions of any permit, order, or any applicable Federal or State law or
regulation. Additionally, IDEM or anyone
acting on its behalf shall not be held liable for any costs or penalties
Respondent may incur as a result of Respondent’s efforts to comply with this
Agreed Order.
15. Nothing in this Agreed Order shall
prevent or limit IDEM’s rights to obtain penalties or injunctive relief under
any applicable Federal or State law or regulation, except that IDEM may not,
and hereby waives its right to, seek additional civil penalties for the same violations
specified in the NOV.
16. Nothing in this Agreed Order shall prevent
IDEM [or anyone acting on its behalf] from communicating with the EPA or any
other agency or entity about any matters relating to this enforcement
action. IDEM or anyone acting on its
behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the
EPA or any other agency or entity.
17. This Agreed Order shall remain in effect until
Respondent has complied with all terms and conditions of Order Paragraph Nos. 3
through 9 and IDEM issues a Resolution of Case letter.
18. Respondent's compliance with this Agreed
Order shall resolve all alleged violations set forth in the Findings of Fact.
REMAINDER OF PAGE INTENTIONALLY LEFT
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
Jupiter Aluminum Corporation, Jupiter Coil Coating Division |
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By: ________________________ |
By: ________________________ |
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Mark W. Stanifer, Chief |
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Water Enforcement Section |
Printed: ______________________ |
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Office of Water Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: ____________________ |
By: ______________________ |
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Date: _______________________ |
Date: ______________________ |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS ______ DAY OF ________________________,
20___. |
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For the Commissioner: |
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Signed on March 1, 2011 |
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Bruno Pigott |
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Assistant Commissioner |
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Office of Water Quality |
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